The military justice system is broken. It is a tool for maintenance of good order and discipline, and nothing else. When cases drag on for years, such as this one, any rational connection to good order and discipline is lost. When an accused can brazenly refuse to comply with basic military appearance and grooming standards and succeed, there is serious rot not only within the military justice system but also within the military itself.

A sailor aboard a ship who refused to shave would find himself stewing in the brig on bread and water in a matter of hours. In this case, a cowardly murderer provokes months of utterly pointless litigation and complete paralysis on the part of the convening authority and his chain of command without consequence. Let us ask ourselves, from the perspective of good order and discipline, who’s in charge here? Who has the power? Who’s running things? If you’re wondering what the answer is, look for the smirk behind the beard.

I recall listening in on a presentation by the good Col Sullivan about the history of the death penalty under the UCMJ. He remarked that one of the first death penalty cases under the UCMJ, back in the 1950s, made it all the way through final appellate review in less than a year. The assembled crowd chuckled at the joke, because even the simplest special court-martial takes longer than that nowadays. But the joke’s on us. Military justice must be both sure and swift to be effective in its role of maintaining good order and discipline, but that swiftness has been sacrificed on the altar of the god of mindless procedural perfection. There’s a damn good reason the Navy has always demanded and preserved the special rules it enjoys under Article 15 for personnel aboard ship. The swiftness of Captain’s Mast is utterly essential to the running of a tight ship. I have personally witnessed sailors punished at Mast in as little as 30 minutes after an offense, and such swift justice works wonders in maintaining good order and discipline.

Any justice system should be embarrassed that it takes more than three years to even get close to a trial of an accused who is obviously and undoubtedly guilty of of 13 murders and many other associated crimes. For a justice system that exists solely to maintain good order and discipline in the armed forces, it is all the more so a monument to failure. And the case is still pretrial. I shudder to think of the circus that awaits on appellate review.

To all my friends at CAAFlog, thank you most kindly for permitting this old ghost an opportunity to rant a bit. Please carry on and enjoy your day.
Most humbly,
CS
[PS, there’s an extra “the” roaming around COL Osborn’s name up there.]
[PPS, yes, I called Hasan a murderer, because he is. Boilerplate “presumed innocent until proven guilty” language in press releases notwithstanding, said presumption applies only in the courtroom, not outside it. He murdered 13 people and tried to murder many more. That fact that the law has yet to pass judgment on those facts doesn’t change the facts. Thank you, I feel much better now, carry on!]

I can’t resist jumping on this bandwagon. Let’s not forget to mention the glacial pace at which our law enforcement service and trial offices work these cases up for trial. Many of them are understandably once bitten twice shy but the toll that ‘justice delayed’ takes on the (yes, I’ll give you alleged) victim should not be forgotten.

Admiral – your rant is well-placed, but I fear, does not go deep enough!
Consider this – most of us can change a tire on our car if need be, so in one sense we’re “qualified” to do that. But, how many are experiencedenough to be able to properly change a tire on a Formula One race car, mid-race in under 10 seconds? Why did the powers-that-be chose SEAL Team 6, to get Bin Laden, versus a company of Marines or Rangers? Superb qualifications and experience (and no disrespect to my Marine and Ranger friends).
Fortunately, the military has few death penalty cases, but that then means that there is not an experienced cadre of “death qualified” prosecutors, defense counsel and military judges. Keeping this case in the military justice system was paternalistic, but unreasonable due to the lack of experienced decision-makers in this particular arena [and I am not making any ad hominem attacks on anyone]. After the first homicide, this case ceased being a “military justice” matter as it had/has nothing to do with “good order and discipline” [unless you include those responsible for not doing anthing when Hasan first went off the deep end in medical school] or running a “tight ship.” It was and remains a multi-homicide, terrorist act that belonged in federal court with the appropriate prosecutorial and defense resources available.
I cannot envision any federal district Judge that I’ve ever appeared before becoming bogged down with the minutia that has plagued this case, much less putting up with the snail’s pace of the proceedings.
And don’t forget the “trump” card that Hasan has yet to play – just prior to trial opting to represent himself a la Zacharias Moussaoui. That created some initial chaos to be sure, but an experienced and forceful District Judge got the case tried with thousands of pages of classified material. You want to be the lead actor on a world stage of the “theater of the bizarre,” play that card and watch what happens.DISCLAIMER: I was a consultant to Moussaoui’s Federal Public Defenders and authored an amicus brief for NACDL at SCOTUS on the death-penalty issue.

Let me be the contrarian but death is different. I know everyone thinks that’s a trite phrase, meaningless, but if you are going to kill a man, then you better do it right. And we haven’t done it right very well, our reversal rate is strong evidence of that.

So, do you do “quick, swift” justice in this case, only to probably have to do “quick, swift” justice 6-10 years from now when it’s returned for a new trial on sentencing or merit? Or do you do a little slower justice now with the hope that the case won’t be returned, or at least will only be returned for sentencing? (Or do you just do LWOP, my preference, save a lot of time and money, have much “swifter justice,” and end up with the same result of the guy dying in prison?).

Seems to me the latter is better. Now, I have no idea why the COC didn’t just shave him, OR, the MJ just didn’t craft a heavy-duty instruction to the panel, and leave it to the accused (with heavy duty colloquy with him on the record that it’s what he wants) to be there with beard, but once the MJ did what he did, it had to be settled via the appellate route.

As one senior trial judge once told me and other counsel- “If you don’t have the time to get it right, when are you going to find the time to do it over?” This is especially apt in death penalty cases- and as Col Sullivan’s statistical analysis of DP cases shows- our military justice system has a pretty poor record when it comes to getting it right with these kinds of cases. The fact is, as Dew_process points out, the military justice system is ill equipped to handle death penalty cases. DoD wide there are probably only about a dozen counsel who have any experience in trying at least ONE death penalty case in the military justice system- and at least a quarter of them are over the rank of O-5, and haven’t seen the courtroom in a a while and the disparity between government and defense counsel is vast. Also consider that even the Military Commissions for alleged terrorists requires at one counsel meet the ABA guidelines for “death penalty qualified counsel.” I’m not sure many defense counsel DoD wide would claim to meet this standard. Moreover, the military justice system has no good system to identify cases appropriate for the DP as within DOJ. As one TJAG once admitted to me privately, the military needs to get out of the death penalty business. It is just not experienced enough to do it right. And as far as the Hasan case is concerned, CAAF was right to point out that the chain of command should have been the authority to to enforce a grooming standard. Why the trial judge allowed the chain of command to abdicate this role and allowed the trial to devolve into a pissing match over the accused’s beard is a mystery. If I understood the CAAF opinion right, it is that all involved need to get their eye back on the ball- the 13 specifications of premeditated murder, not a grooming standard. The rock bottom truth is the military justice system is not completely broken, but it is systemically ill equipped to handle death penalty cases.

Although this appears to be an exception, the Army has done a reasonably good job with U.S. v. Akhbar at both the trial level and ACCA. And if I remember correctly, Moussaoui was captured in 2001, sent to EDVA, and wasn’t sentenced until 2006. I respectfully disagree with Dew’s otherwise well-reasoned comparison that Moussaoui was handled much better than the military justice system. That case was mired in litigation and issues that extended well beyond a “typical” capital case, which is what some of these military terrorism cases are. In the end, Moussaoui pled guilty negating further delay and headed right into sentencing, where the jury gave him life. His appeals did not end in the 4th Cir until something like 2010.
It is obvious that the military lacks experience in capital cases, but I don’t think it’s broken beyond repair. Perhaps DOJ can augment part of the trial teams in military cases like they do in the commissions and also require funding for civilian (or military) learned defense counsel for servicemembers.

I agree that in a DP cases, if there is a question about the identity of the perpetrator, then yes, it’s of the utmost importance to thoroughly investigate and make sure you prosecute the right person, and if it takes 3 years to get to trial in those cases, then I don’t have a problem with that. But this isn’t a “whodunit” case, and if he is sentenced to death, the case will be tied up for decades on appeal.

Well, I think you don’t have two DP standards, one for when you are really sure you have the right guy, and one when you aren’t, because ostensibly, you’d never ideally even be in the latter stage because who would go to the DP without a subjective belief that they have the right person?

At any rate, you want to kill someone, then it’s going to be harder. The alternative is an increased chance of killing an innocent person.

Maybe I just don’t quite get it — but it seems to me that there are experienced folks at the federal level on both the prosecution (AUSAs) and defense (federal public defender’s) with specific capital experience. Why not detail such folks on both sides of the teams, along with the JAGs, to raise the bar?
That doesn’t take care of the third piece of the puzzle, the Military Judge, but it gets you pretty far down the road towards moving the ball forward to a resolution of the case.

The military justice system “is a tool for maintenance of good order and discipline, and nothing else.”
I think, just maybe, that guaranteeing Constitutional due process for individual servicemembers might also be a part of the system as well. That maybe Congress had that in mind in passing the UCMJ and the Military Justice Act.
So with regrets to some of the commentariat, we can’t turn the clock back to those glorious years prior to the UCMJ when you didn’t have to worry about lawyers getting in the way of summary executions.

The Military Commissions statute provides learned civilian counsel for accused terrorists facing the death penalty, assuring the terrorists that they will have DP competent counsel. That there is not a corresponding statute for military personnel facing the DP is indefensible. There are not that many DP cases tried by the military, so spending $100K for DP qualified defense counsel is not going to break the bank. My co-counsel in the SGT Bozicevich case did wonderful work on our motion for appointment of DP learned counsel and, of course, we got no love. We filed an Ex Writ to try to force the Army to go down that road and CAAF demurred. The issue ended up being mooted by a non-unanimous verdict, so the issue in our case died on the vine and will not be a matter for appellate review. That said, I still think it is unconscionable and inexplicable that the United States assures that terrorists facing the DP will have Government-funded experienced DP counsel yet military service members are left to fend for themselves. Putting service members on equal footing with terrorists for defense experience really is a no brainer, unless you are simply paying lip service to the contributions of military personnel by the TJAG, SASC, HASC, and POTUS.
It took 21 months to get SGT Boz to trial. We had 39(a) sessions every month; we moved carefully forward, but forward at a pace that allowed non-DP qualified counsel (all 3 of us) to do a proper investigation, visit the crime scene, identify, prepare with and interview experts, interview over 100 witnesses, and generally prepare for trial. There is something to be said for doing it right, if not fast. As they say in the Marine COrps, “if you want it bad, you get it bad.”

Mr. Babu, a fine job with your strawman. I stand by my statement. Nowhere did I say that a swift and sure (not quick, swift, Mr. Stewie) system must sacrifice due process. What I did criticize was the pursuit of procedural perfection (something due process does not require) without regard to the underlying purpose of military justice, which is good order and discipline. When I state that the UCMJ is a tool for good order and discipline, I mean it. It is not just another federal criminal court, because if it is, there is no purpose for its existence. Simply refer criminal cases to the nearest federal court and discharge the accused. If he’s acquitted and wants back in, so be it.

A commanding officer who lets a discipline issue suitable for Article 15 fester for more than a few days will lose control of his command. That he would let it fester for 30 days is inconceivable. All the more so for the more serious crimes. If a criminal act can go unresolved by the military justice system for years, it is no longer a matter of good order and discipline, because any measurable effect the trial may have on discipline is long gone. That’s what I mean when I say the military justice system is broken. If we are to have a military justice system, which has its sole reason for existence being the maintenance of good order and discipline, then it must be both swift and sure.

We were, I thought, specifically talking about DP trials, so then I’d ask, since the emphasis is on swift v quick (which seem fairly synonomous to me) then what is your definition of “swift” in a DP case?
How long is too long? Because there is no way any DP case is going to take less than a year, not in Federal court, and not in the military, so the idea that good order and discipline is going to be negatively affected if something takes 2-3 years versus 1+ year just doesn’t seem particularly a strong argument to me.
I’d also wonder how a DP level case really has any bearing on good order and discipline. We don’t tend to have those types of crimes very often, and I don’t think folks are going to be undisciplined or in less order because a DP case takes years plural instead of a year or so. The folks who tend to do this aren’t your average SM, and I don’t think we have to worry we will have more Hasans unless we get him to trial in a year or less.
How does discharging them to the Feds and letting them take care of it add to good order and discipline? If it did, then why have a military justice system at all? So all of this makes me think quick, swift, whatever term just means do it…well…quickly and swiftly, but I am open that you have a specific definition that I’ve not considered.
BL I see no impact on good order and discipline that you’d get from swifting up the process that wouldn’t be canceled out by the risk of overturning because you went too swiftly.

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